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2022 DIGILAW 142 (TS)

Mood Chinna Gangaram v. Malavath Jagmal

2022-03-04

G.SRI DEVI

body2022
JUDGMENT : This appeal is filed by the claimants, aggrieved of the order and decree dated 15.05.2012 in O.P.No.397 of 2009 on the file of the Motor Accidents Claims Tribunal (District Judge) at Nizamabad. By the said order, the learned Tribunal has allowed the O.P. in part awarding total compensation of Rs.2,39,000/- as against the claim of Rs.6,00,000/- made by the claimants. 2. On 09.05.2007, at about 1:00 p.m., the deceased-Mood Chinna Santosh, aged 20 years, while returning home from the agricultural fields on the motorcycle bearing No. AP 15AB 0617 that belongs to respondent No. 1 and when he reached the outskirts of Dathapur Village, the deceased lost control over the motorcycle, dashed to Hider stone by the side of the road and sustained serious injuries on the head. While undergoing treatment at Gandhi Hospital, on 10.05.2007 the deceased succumbed to the injuries. According to the claimants-parents, the deceased was unmarried and earning Rs.10,0000/- per month by doing agriculture and therefore, they laid a claim for Rs.6.00 lakhs under different heads. Respondent No. 2 filed written statement denying all the material allegations made in the petition and put the claimants to strict proof of the same. It is specifically denied the manner of the accident, death of the deceased, age, avocation and income of the deceased. It is also alleged that as the deceased was not possessing driving license, there is breach of terms and conditions under the insurance policy and hence, the Insurance Company is not liable to pay the compensation. 3. The Tribunal, considering the claim of the claimants, written statements filed by respondent Nos. 1 and 2, and on evaluation of the evidence, both oral and documentary, allowed the O.P. in part awarding a total compensation of Rs.2,39,000/- along with costs and interest @ 7.5% per annum from the date of petition till the date of realization, to be deposited by the owner of the motorcycle i.e., the respondent No. 1 while dismissing the claim against the Insurance Company i.e., the respondent No. 2 as the deceased was not possessing valid driving license. Challenging the findings of the Tribunal in exonerating the Insurance Company from payment of compensation and seeking enhancement of compensation, the appellants-claimants have filed this appeal. 4. Heard both sides and perused the material brought on record. 5. Challenging the findings of the Tribunal in exonerating the Insurance Company from payment of compensation and seeking enhancement of compensation, the appellants-claimants have filed this appeal. 4. Heard both sides and perused the material brought on record. 5. The learned counsel for the appellants-claimants has contended that the Tribunal has failed to consider the evidence adduced on behalf of the claimants in proper perspective and erred in exonerating the Insurance Company from payment of liability when separate premium was paid for personal accident of owner and driver. It is contended that as per the decision in National Insurance Company Ltd. V. Swaran Singh and Others, (2004) 3 SCC 297 , the insurer is under obligation to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. As regards the quantum of compensation, it is contended that at the time of accident, the deceased was earning Rs.10,000/- per month by doing agriculture, but the Tribunal, on assumption, took the monthly income of the deceased at Rs.3,000/- which is very meagre. With regard to the multiplier, it is contended that by the time of the fatal accident, the deceased was 20 years old, and therefore, as per the structural formula under Section 163A Second Schedule of M.V. Act, proper multiplier applicable in the case on hand is ‘16’ and not ‘13’, as erroneously adopted by the Tribunal, relying on the age of the mother of the deceased. Lastly, it is contended that the amount awarded under the conventional heads such as funeral expenses, loss of estate are meagre and needs enhancement. 6. The learned Standing Counsel appearing on behalf of respondent No. 2 has submitted that the compensation amount granted by the Tribunal is just and reasonable and therefore, needs no interference by this Court. It is contended that even the finding of the Tribunal in exonerating the Insurance Company as there was breach of terms and conditions of the Policy, needs no interference. 7. There is no dispute with regard to the manner of the accident and the rash and negligent driving on the part of the deceased in causing the accident. With regard to quantum of compensation, according to the claimants, the deceased was earning Rs.10,000/- per month by doing agriculture. 7. There is no dispute with regard to the manner of the accident and the rash and negligent driving on the part of the deceased in causing the accident. With regard to quantum of compensation, according to the claimants, the deceased was earning Rs.10,000/- per month by doing agriculture. Since there was no evidence to substantiate the income of the deceased, the Tribunal rightly estimated the income of the deceased at Rs.3,000/- per month. After deducting 1/2nd towards personal expenses of the deceased, the net monthly income comes to Rs.1,500/- and Rs.18,000/- per annum, as rightly calculated by the Tribunal. However, as regards the multiplier, it is to be seen that the claim petition was filed under Section 163-A of the MV Act. Therefore, while determining the compensation, only the structural formula prescribed under Section 163-A and Second Schedule of the M.V. Act can be considered. In view of the decision of the Apex Court in Munna Lal Jain v. Vipin Kumar Sharma and others, 2015 (6) SCC 347 , in case the deceased was a bachelor, the age of the deceased has to be , considered while determining the multiplier and not the age of the younger parent. Therefore, the multiplier arrived at by the Tribunal on this basis is not correct. As per Ex.A5-Post Mortem Examination Report, the deceased was aged about 20 years and bachelor as on the date of his death. Therefore, as per the structural formula under Section 163-A Second Schedule of M.V.Act, proper multiplier applicable in the case on hand is ‘16’ and not ‘13’, as adopted by the Tribunal. Adopting multiplier ‘16’, the total loss of dependency would be Rs. 2,88,000/- (Rs.18,000 x 16). In addition to the above, the claimants also entitled to the general damages i.e., Rs.2,500/- towards funeral expenses and Rs.2,500/- towards transport charges. However, the ratio laid down in National Insurance Company Limited Vs. Pranay Sethi and others, 2017 ACJ 2700 is not applicable in the claim petition filed under Section 163-A of the M.V. Act. Therefore, no compensation can be added towards loss of future prospects. So also, under conventional heads, compensation of Rs.77,000/- as sought for by the learned counsel for the claimants cannot be awarded. Thus, in all the claimants are entitled to Rs.2,93,000/- together with interest @ 7.5% per annum from the date of petition till the date of realization. 8. Therefore, no compensation can be added towards loss of future prospects. So also, under conventional heads, compensation of Rs.77,000/- as sought for by the learned counsel for the claimants cannot be awarded. Thus, in all the claimants are entitled to Rs.2,93,000/- together with interest @ 7.5% per annum from the date of petition till the date of realization. 8. Coming to the aspect of liability of payment of compensation, admittedly, as seen from Ex.A.6, MVI Report, the deceased was not possession driving license and therefore, there is breach of terms and conditions of the Insurance Policy, as rightly contended by the learned Standing Counsel for the Insurance company. But the fact remains that by the time of accident, the offending vehicle was insured with the respondent No. 2 and Ex.B.1 policy was very much in force. In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh and others, (2004) 3 SCC 297 , the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. Recently, the Apex Court in case of Shamanna v. The Divisional Manager, the Oriental Insurance Company Limited and Others, 2018 ACJ 2163 , following its earlier decision in Swaran Singh (supra), reiterated that even if the driver does not possess any driving license, still the insurer is liable to pay the compensation and that he can recover the award amount from the owner of the offending vehicle after paying the amount. 9. In the result, the M.A.C.M.A. is allowed in part by enhancing the compensation amount awarded by the Tribunal from Rs.2,39,000/- to Rs.2,93,000/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of award passed by the Tribunal till the date of realization. 9. In the result, the M.A.C.M.A. is allowed in part by enhancing the compensation amount awarded by the Tribunal from Rs.2,39,000/- to Rs.2,93,000/-. The enhanced amount shall carry interest at 7.5% p.a. from the date of award passed by the Tribunal till the date of realization. However, following the doctrine ‘pay and recover’, the Insurance Company-respondent No. 2 is directed to pay the compensation amount to the appellants-claimants, in the first instance and thereafter recover the same from the owner of the offending vehicle i.e., the respondent No. 1 herein without initiating any separate proceedings. No costs. Pending miscellaneous applications, if any, shall stand closed.